P. v. Herrera
Filed 8/9/12 P. v. Herrera CA2/7
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
EDGARDO HERRERA,
Defendant and Appellant.
B231774
(Los Angeles
County
Super. Ct.
No. BA363975)
APPEAL from a judgment of the Superior Court of
County. Frederick N.
Wapner, Judge. Affirmed.
Elizabeth A. Missakian, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Scott A. Taryle and David A. Wildman, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________
Edgardo Herrera appeals his convictions for
§ 211) and the associated gang
enhancements (§ 186.22, subd. (b)(1)(C)). He alleges on appeal that the evidence was
insufficient to establish identity; that there was
gang enhancement allegations; and that specific language in a jury instruction
directed the jury to convict him. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2009 Mario Frias, Jesus Nunez, Arturo
Frias, and Victor Vasquez were walking to a party when they were approached by
two men. One asked Mario Frias where he
was from, and he responded, “Nowhere,” signifying that he was not a gang
member. The man demanded that Mario
Frias give him the contents of his pockets.
Mario Frias refused and slapped the man’s hand away when he reached for
Frias’s pocket. The man hit Mario Frias
in the head with a pistol. He went
through Nunez’s pockets and hit Nunez in the head with the gun.
Mario Frias ran across the street, but two men jumped
from a nearby car, demanded his possessions, then attacked him when he claimed
to have nothing to give them. Herrera
was the driver of the car; he remained in the car and gave orders to the
assailants, including an instruction to be sure to take the men’s
possessions. Herrera was holding a
shiny, rounded object that was shaped like a bat and that made a sound like a
gun being loaded. The Frias brothers and
Nunez were beaten and robbed. Three of
the attackers left in the car Herrera drove.
Herrera was convicted of three robberies, with gang
and firearm enhancement allegations
(§ 12022, subd. (a)(1)) found true.
The jury was unable to reach verdicts as to his two co-defendants. Herrera appeals.
DISCUSSION
I. Sufficiency
of the Evidence of Identity
Herrera contends that the convictions must be reversed
because there was insufficient evidence that he was a participant in the
robbery. Specifically, Herrera asserts
that multiple inconsistencies and contradictions in the description of the
suspects provided by the prosecution witnesses, as well as a flawed
identification procedure used by the police, demonstrate that the evidence of
identity at trial was not substantial.
“In reviewing a claim for sufficiency of the evidence, we must determine
whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements
of the crime or special circumstance beyond a reasonable doubt. We review the entire record in the light most
favorable to the judgment below to determine whether it discloses sufficient
evidence—that is, evidence that is reasonable, credible, and of solid
value—supporting the decision, and not whether the evidence proves guilt beyond
a reasonable doubt. [Citation.] We neither reweigh the evidence nor
reevaluate the credibility of witnesses. [Citation.]
We presume in support of the judgment the existence of every fact the
jury reasonably could deduce from the evidence.
[Citation.] If the circumstances
reasonably justify the findings made by the trier of fact, reversal of the
judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding.” (People
v. Jennings (2010) 50 Cal.4th 616, 638-639.) “‘Apropos the question of identity, to
entitle a reviewing court to set aside a jury’s finding of guilt the evidence
of identity must be so weak as to constitute practically no evidence at
all.’ [Citation.]” (People
v. Mohamed (2011) 201 Cal.App.4th 515, 521.)
Viewed in the light most favorable to the prosecution,
we conclude that the evidence is sufficient to sustain Herrera’s
conviction. At trial, Arturo Frias
positively identified Herrera as the driver of the car involved in the
robberies. He had previously identified
Herrera as the driver from a photographic six-pack in the days after the
robbery. Moreover, Herrera implicitly
acknowledged his involvement in the crimes:
in jail, three months after the robbery, he wrote a letter to an
associate expressing confidence that “most likely I[’]m getting the gun
enhan[ce]ment dismissed [be]cause I had no gun.” He wrote that a private investigator was going
to prompt “that fool”—the victim who had identified him—“to say that I hit him
up in a party a month before the rob[b]ery and hopefully he does because I was
busted a month before and if he does say that I[’]m going to ask for them to
remove his testimony and if that happen[]s then I’ll be firme [
I.D. [identified] me. The 2 other
vict[i]ms never saw me so I think I should be ok.” This evidence supports the jury’s verdict in
this case.
Herrera challenges the evidence of Arturo Frias’s
identification of him with evidence that the photographic lineup was performed
in a prejudicial and suggestive manner. He
also points out inconsistencies, not only in Arturo Frias’s statements about
what he actually saw during the incident but also in the descriptions of all
suspects provided by the four prosecution witnesses.
The circumstances of the
identification of Herrera were addressed at trial, and the jury heard evidence
from Arturo Frias about suggestive and prejudicial statements made by the
officer conducting the photographic lineup.
The jury did not conclude that the circumstances of the identification
compromised that identification. “In the
instant case, ‘there is in the record the inescapable fact of in-court
eyewitness identification. That alone is
sufficient to sustain the conviction.’
[Citation.] Next, when the
circumstances surrounding the identification and its weight are explored at
length at trial, where eyewitness identification is believed by the trier of
fact, that determination is binding on the reviewing court. [Citation.]
Third, the evidence of a single witness is sufficient for proof of any
fact. [Citations.]” (In re
Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.) Beyond this identification evidence,
Herrera’s own words established that he was present and involved in the
robberies and indicated consciousness of guilt.
We cannot say that the evidence was insufficient to establish that
Herrera participated in the robberies.
II. Sufficiency
of the Evidence for the Gang Enhancement Allegation
Herrera contends that the evidence was insufficient to
support the gang enhancement because the prosecution failed in two respects to
prove a pattern of criminal activity as required by section 186.22,
subdivisions (e) and (f): (1) only one
of the two predicate acts presented to the jury was committed by a member of
Alcoholics Causing Ruckus (ACR), the gang involved here; and (2) there was
insufficient evidence that criminal acts were one of the primary activities of
ACR. The evidence was sufficient to
support the true finding on the gang enhancement allegation.
The prosecution attempted to establish the requisite
pattern of criminal activity with respect to ACR with evidence of crimes
committed by people named Andrew Rodriguez and Roger Mendoza. Herrera points to testimony of gang expert
witness Detective Eduardo Aguirre on cross-examination in which Aguirre
acknowledged that Rodriguez had maintained he was a member of an associated
gang, Lott 13, and that another officer, purportedly the source of information
that Rodriguez was an ACR member, had actually written down on an investigation
card (a “gang hard card”
that Rodriguez claimed to be a member of Lott 13. Aguirre, however, also testified that heunderstood Rodriguez to be an ACR member based on having spoken with Rodriguez
and speaking to people who know him.
Regardless of whether Rodriguez admitted to being a member of ACR, the
jury could reasonably conclude that he was an ACR member. Moreover, because the offense being tried may
also constitute one of the predicate offenses for the gang enhancement statute
(People v. Gardeley (1996) 14 Cal.4th
605, 625), even if the Rodriguez evidence were to be considered insufficient,
Herrera still has not shown that there was insufficient evidence of two
predicate acts to support the gang enhancement allegation.
Next, Herrera contends that there was
were one of the primary activities of ACR because Aguirre only listed a series
of criminal acts the gang had been involved in as a response to the
prosecutor’s question asking him to state the primary activities of ACR. Herrera claims the evidence was deficient
because Aguirre did not state that criminal activity was one of the gang’s
primary activities, but we find this argument unpersuasive. Aguirre was asked, “What are the primary
activities of ACR” and responded, “ACR, over the years, they’ve been involved
in shootings, robberies, stolen vehicles, gun possessions, sales of narcotics,
vandalism.” We decline to attach
talismanic significance to the words “primary activities”: the jury was entitled to understand this
response as an enumeration responsive to the specific question concerning the
gang’s primary activities.
Herrera asserts that Aguirre’s testimony concerning
primary activities was insufficient because he did not take “the next step and
testify[] that these ‘involvements’ resulted in convictions (or, failing that,
at least arrests) of the gang members in question, leav[ing] one merely with
conjecture.” We are aware of no
authority supporting the principle that testimony concerning a gang’s primary
activities is too speculative or conjectural unless it is supported by evidence
of specific arrests or convictions, and Herrera has not offered any authority
to support this argument. The case he
relies on, People v. Sengpadychith
(2001) 26 Cal.4th 316 (Sengpadychith),
does not support this view. The
“Evidence of past or present conduct by gang members involving the commission
of one or more of the statutorily enumerated crimes is relevant in determining
the group’s primary activities.” (
“primary” and noted that the definition “would necessarily exclude the
occasional commission of those crimes by the group’s members.” (Ibid.) While the Supreme Court in
of the gang enhancement required more than occasional criminal conduct, the
court did not require arrests or convictions.
Instead, the Supreme Court held that primary activities could be proven
by evidence that the gang’s members consistently and repeatedly committed
enumerated criminal offenses, or by expert testimony. (Id.
at p. 324.) Here, there were both
types of evidence: First, Aguirre
testified that he was familiar with the gang and that he had investigated
shootings and robberies that ACR members had committed, and he identified a
number of specific criminal offenses in response to a question about the gang’s
primary activities. This testimony was
supported by the evidence of the charged offense, a coordinated street robbery
involving multiple ACR members. (See
past conduct can be considered in evaluating a criminal street gang’s primary
activities].) Second, Aguirre testified
about one ACR member’s conviction for gun possession and another member’s conviction
for robbery. There was sufficient
evidence to support the gang enhancement allegation.
Finally, Herrera contends that Aguirre’s testimony was
unreliable and untrustworthy because of his bias and his unprofessional
behavior toward the court and counsel.
Specifically, Herrera contends that Aguirre “made clear that he would
testify and say anything to convict appellant,” by asserting that any crime
committed by a gang member was committed for the benefit of the gang and by
“admitt[ing] that one of his goals in being a gang expert is to see suspects of
gangs convicted and sentenced.”
Herrera also contends that instances of disrespect by Aguirre during the
trial toward defense counsel demonstrate his bias and untrustworthiness.
We have reviewed the record with particular attention
to those portions identified by Herrera as demonstrating Aguirre’s bias, and we
find that the record does not support Herrera’s claim. Aguirre did not testify, as Herrera contends,
that “it is not possible” for a gang member to commit a crime for his own
personal benefit. His view was more
nuanced: even as he pointed out that
robberies committed by gang members always benefit their gangs, Aguirre
acknowledged that gang members may commit offenses that are not for the benefit
of the gang:
“Q. Is it
possible for a gang member to commit a robbery and commit that robbery for his
own personal benefit and not necessarily for the benefit of his gang
“A. Not
when he identifies himself with a gang and is active.
“Q. So it’s
always for the benefit of the gang for a gang member
“A. Like I
testified, if he’s active, he has a gang, it’s for his gang; benefits his
gang.
“Q. How
about if the gang member is, for example, selling drugs Is that a crime for the benefit of his gang,
or is it for his own personal benefit
“A. It all
depends on what other factors you have with him selling drugs.
“Q. Okay. So it could depend. Depends on the crime and it could depend on
the circumstances
“A. Exactly,
yes.
“Q. Okay. So gang members can commit crimes for their
own personal benefit in some circumstances
“A. Again,
I would need to know all the factors to make my opinion on whether it’s gang
related or not.”
We also fail to find evidence of bias in a police
officer expert witness acknowledging that one of his goals is to see suspects
of gang crimes convicted and sentenced.
It is difficult to imagine any police officer—particularly one who is
serving as both investigating officer and gang expert—not aiming to ensure that
offenders are properly convicted and sentenced.
To consider that acknowledgment to be evidence of impermissible bias
would preclude all police officer testimony.
The record does demonstrate that Aguirre evinced
disrespect for counsel for Herrera’s co-defendants both during court sessions
and out of court: Aguirre mocked one
attorney through gestures and laughter and insulted another with
profanity. When this unfortunate and
unprofessional conduct was brought to the trial court’s attention during trial,
the court addressed it by admonishing Aguirre that if the behavior did not stop
instantly he would be excluded from the courtroom unless he was testifying, and
he would also be subject to contempt
proceedings for his disruptive and inappropriate behavior. The trial court directed counsel to bring any
further inappropriate conduct to the court’s attention immediately so that the
court could take action “right then.”
The problem of Aguirre’s behavior was promptly resolved by the court,
and no participant expressed any concern that his misbehavior called into
question his testimony. Accordingly,
even if Herrera’s claim of bias was properly preserved for appeal, the record
does not support his contention that Aguirre was so biased and untrustworthy
that his testimony could not be considered.
III. CALCRIM
No. 1403
The jury was instructed with a version of CALCRIM No.
1403 that directed jurors that they could consider evidence of gang activity
for the limited purpose of deciding intent, purpose, and knowledge relative to
the gang enhancement allegation;
motive; or “The identity of the person who committed the crimes.” The jury was authorized to use the evidence
to evaluate witness credibility and when it considered the facts and
information relied upon by an expert witness in reaching an opinion. The jury was instructed not to consider the
gang evidence as evidence of a bad character or disposition, or for any other
purpose.
Herrera contends that the inclusion of the phrase,
“[t]he identity of the person who committed the crimes” was tantamount to
directing a verdict “on the sole basis that appellant’s membership in a gang
established his identity in the offenses.”
There is no reasonable likelihood that the jury improperly applied the
instruction as Herrera suggests. (
963 [“If a jury instruction is ambiguous, we inquire whether there is a
reasonable likelihood that the jury misunderstood and misapplied the
instruction”].) This limiting
instruction informed the jury that it could consider the gang evidence when it
determined the question of identity; it did not compel a conclusion of identity
if the jury found Herrera to be a gang member.
Particularly when read in conjunction with CALCRIM No. 315, which
instructed the jury on all the considerations involved in evaluating witness
identifications, we find no reasonable likelihood that the jury relied upon
this instruction to use the gang evidence improperly.
DISPOSITION
The judgment is affirmed.
ZELON,
J.
We
concur:
WOODS, Acting P. J.
JACKSON, J.
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further statutory references are to the Penal Code.
subheading for this argument, Herrera also contends that “the Cognitive
Deficiencies of the One Victim Who Did Identify Appellant” warrant reversal,
but Herrera’s opening brief contains no argument concerning the impact of
Arturo Frias’s cognitive abilities on the identification. In the reply brief Herrera asserts in the
introductory paragraph that cognitive deficiencies are a further basis for
reversal but never again mentions these deficiencies in five pages of
argument. We do not consider this
contention based on its mere inclusion in a heading of the opening brief and
cursory mention in the reply brief when Herrera has made no argument regarding
this basis for reversal. (Cal. Rules of
Court, rule 8.204(a)(1)(B) [briefs must “support each point by argument”].)
